A New Mexico School District Censors Students’ Attempts to Use Plastic Fetus Dolls to Talk About Abortion

On April 8, the U.S. Court of Appeals for the Tenth Circuit issued its ruling in Taylor v. Roswell Independent School District. The case involved five students who belong to an anti-abortion, church-affiliated religious group called “Relentless.” The case was brought after the group distributed 2,500 fetus dolls to students at two schools within the District. (The group had also distributed other items such as candy canes and hot chocolate, coupled with religious messages, at the school, in the past, with their pastor present at the distributions, and without being penalized.) The Tenth Circuit affirmed the dismissal of the students’ free speech, free exercise of religion, and equal protection claims. In this column, I’ll contend that the students’ situation here calls for a refinement of the hallowed Tinker test that governs speech in the public schools, and allows student speech to be penalized if it presents a significant disruption for the school.

The Two School Policies at Issue, and How They Relate to the Distribution of the Fetus Dolls

School authorities had earlier put into place two potentially relevant policies regarding students’ distributions of various kinds of materials: (1) a written policy requiring that students had to get advance permission before distributing promotional items or advertisements; and (2) the unwritten but longstanding policy requiring permission to be granted before students could distribute non-school-sponsored literature. In this context, one could argue that the dolls were in some sense promotional items or advertisements. And since the dolls came with a scriptural passage, one could also argue that that passage could be deemed non-school-sponsored literature.

The Events of the Day When the Dolls Were Distributed, and Relentless’ Attempt to Engage in Another Distribution of the Dolls

On the morning when the fetus dolls were distributed at both high schools, each student, when he or she arrived at school, was offered a doll in the school lobby by a member of Relentless. Those who rejected the dolls simply continued on their way.

Some students who took the dolls, however, detached the dolls’ heads and started throwing them at the walls—and some used the dolls for various other kinds of mischief, such as detaching the dolls’ heads and using them as rubber balls, and throwing the heads at the ceiling to see if they would stick. None of the students who engaged in this mischief, however, were members of Relentless.

As a result, administrators at both high schools eventually directed that the dolls be confiscated, having found that the misuse of the Relentless dolls had become a major distraction for their students. After that, Relentless engaged in other distributions to convey their messages; those distributions did not cause disruptions. Later, Relentless sought to engage in another doll distribution, but it was not approved by the school.

The Application of the Standard Set Out in Tinker v. Des Moines Indep. Comm. Sch. Dist.

In the key school-speech case of Tinker v. Des Moines Indep. Comm Sch. Dist.,the Supreme Court held that public school students enjoy First Amendment rights while in school, as long as their speech does not create a substantial disruption there. In Tinker itself, the students at issue wore black armbands to protest the U.S.’s role in the Vietnam War. As they caused no disruption, the High Court ruled that their protests were protected by the Constitution. Here, the Tenth Circuit held that under Tinker and its progeny, the students had no right to continue distributing the dolls, for the initial distribution was disruptive, and the next distribution very likely would be, too.

There was an interesting wrinkle here, though. A remark by an Assistant Principal invoked the fear of “offense,” rather than the likelihood of substantial disruption that Tinker requires. Despite the likelihood that the unconstitutional presence of mere offense had tainted the school’s decision-making, the Tenth Circuit focused on the likelihood of disruption. In doing so, it gave short shrift—wrongly, I think—to the possibility that offense—and not only the fear of disruption—was a major driver of the controversy at the school. This offense/disruption distinction is an important one, as a school decision made based on offense at student speech alone would clearly violate the First Amendment.

This Case Indicates That the Tinker “Substantial Disruption” Test Needs to Be Refined

This case underlines an important problem with the Tinker test: It only looks to disruption and whether that disruption is substantial, and not to who is causing that disruption.

In this instance, the members of Relentless were completely innocent from a First Amendment point of view (although possibly not from the viewpoint of school policies). Relentless apparently did not intend any disruption; the group had never been disruptive before; and the group itself caused no disruption at all, on the day that it distributed the dolls. Instead, all the disruption at issue here was wrought by the malcontents who decided to use Relentless’s dolls for their own purposes.

The classic Tinker scenario has students’ speaking out and getting punished for the disruption that they’ve predictably wrought. In such a scenario, the speaker and the disrupter are the same. Here, in contrast, students in the Relentless group spoke out, and others caused the disruption that followed—not by joining in speech, but in making mischief that seemingly had no First Amendment motivation. Surely it is the mischief-makers, and only them, who should be able to be penalized.

Julie Hilden, a Justia columnist, graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for over a decade. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read... a work of art." Her website’s address is www.juliehilden.com.

Julie Hilden graduated from Harvard College and Yale Law School, where she served as a Teaching Assistant and a Notes Editor on the Yale Law Journal. From 1992-93, Hilden clerked for then-Chief Judge… more.

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